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Careful U.S./China Diplomacy Spawns Historic Breakthrough at Paris Climate Conference

Last week I was in Paris where representatives from every nation on the planet negotiated a new agreement to combat global warming and climate change.  Approved unanimously on December 12, 2015, the Paris Agreement represents a historic breakthrough. For the first time all nations – rich and poor, large and small -- acknowledge the seriousness of the problem and their need to take progressively more ambitious actions to respond to it.  The agreement includes robust transparency provisions to assess the progress of each nation and it provides developing countries with significant financial assistance to make the transition to green energy sources.

The Paris Agreement was possible only because of years of careful diplomacy.  A key element in this diplomacy was President Obama’s determined engagement on climate issues with the Chinese government.  China and the U.S. are now the two largest emitters of GHGs, accounting for almost half of the world’s total emissions.  When President Obama met China’s President Xi Jinping for the first time in June 2013, they agreed that it was essential that the two countries work together to combat the problem. As a first step, they agreed to use the Montreal Protocol, the international treaty to combat ozone depletion, to phase out ozone-depleting substances that also are powerful greenhouse gases.  The two countries then conducted secret negotiations that culminated in November 2014 with the announcement of a climate agreement between the United States and China. The centerpiece of the agreement was a commitment by the Chinese government for the first time to cap its emissions of greenhouse gases by 2030, if not sooner.  China also pledged that the share of energy it derived from renewable sources will increase to 20 percent.  The U.S. pledged to share advanced carbon capture and storage technology with China.

The U.S.-China climate agreement was a game changer for global climate negotiations.  With the two largest emitters of greenhouse gases agreeing to cap their emissions, a major obstacle to a global agreement was removed. President Obama also pressed the Indian government to agree to a similar deal when he visited India in February 2015.  At the same time the French government used its global network of embassies to lobby delegates from developing countries in advance of the Paris conference.

Prior to convening on November 30th, nearly all of these countries had announced their own “Intended Nationally Determined Contribution” to controlling greenhouse gas (GHG) emissions.  The U.S. pledged to reduce its GHG emissions by 26-28% over 2005 levels by the year 2025.  The Paris agreement will require each country to meet its pledge, but opponents of President Obama argue that he cannot keep his promises to the global community. 

The Obama administration is confident that the U.S. can meet its promise because of regulatory actions by the U.S. Environmental Protection Agency (EPA) and other federal agencies to reduce GHG emissions.  These actions were part of a broad Climate Action Plan announced by President Obama in June 2013.  U.S. fuel economy standards have been raised dramatically and EPA has issued regulations to control GHG emissions from power plants.  On August 3, 2015, the U.S. Environmental Protection Agency adopted a final rule known as the Clean Power Plan.  Issued pursuant to EPA’s authority under the Clean Air Act, the rule will require states to reduce GHG emissions from existing power plants by 32% by the year 2030. It is expected to accelerate the retirement of coal-fired power plants as electric utilities increasingly shift to natural gas and renewable sources of energy.

Senate Majority Leader Mitch McConnell argues that the U.S. cannot meet its promises to the global community because the Clean Power Plan is illegal and will either will be struck down in court or be revoked by a new Republican president.  The former seems unlikely for reasons I have discussed in “Obama Builds Legacy on Climate Change with EPA Clean Power Plan: A Path Toward Cleaner Energy,” The Conversation, Aug. 4, 2015.  These include the fact that the U.S. Supreme Court repeatedly has upheld EPA’s authority to regulate GHG emissions under the Clean Air Act beginning in 2007 with its decision in Massachusetts v. EPA. But a new president working with congressional opponents of climate action could act to undermine the U.S. commitment.

A new president opposed to climate action could direct EPA to repeal its regulations, but this would require the agency to undertake a lengthy rulemaking process to comply with the Administrative Procedure Act.  Any agency decision to revoke the regulations would be challenged in court and could be overturned.  When President Reagan’s Department of Transportation rescinded its air bag regulations, the Supreme Court held that it had acted arbitrarily and capriciously because the decision was not supported by the factual record showing that air bags save lives (Motor Vehicle Mfrs. Ass’n v. State Farm Mutual).  When the Supreme Court in 2011 rejected state efforts to hold electric utilities liable for climate change under the federal common law of nuisance, it noted that any future agency decision not to regulate such emissions would be subject to judicial review.

Working with a new president sympathetic to opponents of environmental regulation, Congress could repeal or amend the Clean Air Act, the legal foundation for EPA’s regulations of GHG emissions.  However, the Clean Air Act has been remarkably durable in the face of legislative onslaught in the past, which is why the “airpocalypses” choking major cities in China and India right now do not happen in the U.S. But targeted amendments to deprive EPA of authority to implement the Clean Power Plan and other GHG regulations could be adopted.  Similarly, Congress could use the power of the purse to withhold funds for actions necessary to implement any Paris agreement.

The Paris Climate Conference was conducted pursuant to the UN Framework Convention on Climate Change, a treaty signed by President George H.W. Bush in June 1992 and ratified unanimously by the U.S. Senate on October 7, 1992.  The Obama administration has made it clear that it will not treat any Paris agreement as a treaty requiring ratification by two-thirds of the U.S. Senate. The Obama administration believes it already has sufficient legal authority to implement any agreement made in Paris and thus it need not seek congressional approval.  In 2013 the U.S. signed the Minimata Convention on Mercury, a global agreement to protect human health and the environment from the adverse effects of mercury.  Because existing environmental laws already provided the government with legal authority to implement the requirements of the Minimata Convention, the U.S. became the first country in the world to deposit its instrument of acceptance of the agreement with the United Nations with no action required by Congress.

For decades the principal argument of U.S. opponents to climate action was that our international competitors were not doing anything.  Now that we have finally persuaded them to act and have a global agreement requiring them to do so, it would be incredibly foolish to reverse course. A new era of global environmental cooperation is dawning. Against all odds, it can bring green energy and healthier lives to the entire planet.

Robert V. Percival is the Robert F. Stanton Professor of Law and the Director of the Environmental Law Program at the University of Maryland Carey School of Law.

Robert V. Percival

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Copyright © 2018, University of Maryland Francis King Carey School of Law. All Rights Reserved